Copyright Infringement isn’t always illegal! But it is always Infringement.

In the circles I’ve been reading lately, copyright infringement is a hot topic.  There seems to be some serious misunderstanding out on the Interwebs about what copyright infringement means, and more specifically, what fair use means.

First of all, IANAL.  Which is short hand for saying I’m not a lawyer, but I play one on Blog TV.  After all, only someone who isn’t a lawyer but is about to pontificate about the law will actually say IANAL.  As such, this is all my opinion and not legal advice.

Fair Use is an important concept when it comes to copyright law.  Under copyright, the purpose of copyright is to ensure the creator of a new work has the control of how that work is prepared and displayed.  Fair Use allows others to create new works that are in some way similar or expansive to an existing work.

One of the most common myths, at least in my impression, is that Fair Use isn’t Copyright Infringement.  That’s simply not true.  Fair Use is an affirmative defense FOR copyright infringement.  As an affirmative defense, the first thing you’re doing is admitting that you did infringe.  But you had an excuse.  That excuse is fair use.

The test for Fair Use is pretty simple.  It’s even encoded into the current copyright law, but it originated from court opinion.  The test is:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

Ideally, this test isn’t a checklist.  Violating one thing on this list could negate fair use.  Violating three things on the list might still be fair use.  It all depends.  It’s a case by case thing, not a general rule.

That’s an important point, and let me place a small bit of emphasis here.  Fair Use isn’t a standard.  There isn’t some bright line drawn in the copyright law that delineates fair use from illegal infringement.  You can not rely on how close your specific case resembles some other, decided case.  Fair Use is intended to be decided on a case by case basis, because there can be no bright line that works all the time.

So, which of the four is the most important?  Again, there is no clear answer as to what any particular court will determine is the most important test of Fair Use, but since 1994 in the case Campbell V Acuff-Rose Music Inc. the Supreme Court has held that the first part of the test is the most important.  And really, that makes sense.  After all, the “why” a work has been infringed is vitally important to the issue.

The purpose and character of your use

Is the infringement a wholesale copy of the original?  That’s not Fair Use.  Is the infringement a review of the original?  That’s more likely Fair Use.  Is it informative?  Could be fair use.  Is it transformative, such as a parody or derivative? Could be fair use.  So the first defense under Fair Use is why the work is infringed.

Being transformative isn’t enough to ensure Fair Use.  In Warner Brothers Entertainment V RDR Books, the Supreme Court held that an encyclopedia of the world of Harry Potter is indeed highly transformative, but still infringement.

The nature of the copyrighted work.

The next test, the nature of the copyrighted work, looks at the original work to see if it is ripe for Fair Use.  Mostly this involves checking to see if the work is published or not.  Work that is published, that is placed before the world at large, is easier for a fair use claim than work that is not published.  Part of the concept of copyright is that the copyright holder has the right to how the work is first portrayed to the world.  Usurping that right is frowned upon in the law.  That’s not to say that unpublished works can’t be used fairly, just that a work being published is far more likely to be fairly used than a work that isn’t.

It also defines what “the work” is.  This is vitally important to the rest of the tests, most notably the next part.  Let’s wander off into the realm of hypothetic for a moment.  Let’s say a band writes a song.  Perhaps the lyrics were written by one member of the band, and the lyrics are the copyrighted work of one person.  But the band wrote the music, and that’s copyrighted to the band.  The band records the song, and that’s a separate copyrighted work.  The song is included on the band’s self published album.  That’s also a copyrighted work.  So when a reviewer infringes the work by copying few lines of he song, what work is he infringing?  The lyrics, song, recording or album?  That’s an excellent question, and the answer is simple.  It depends on who sues over the infringement.  In other words, the copyright holder gets to determine what is being infringed.

I am writing on a blog, and the same thing could be said here.  Even before I publish this post, I have the copyright of this specific post.  At that point, it is an unpublished work.  Once I hit publish, it is a published work and I remain the copyright holder.  I am also the copyright holder of the entire Running Wolf blog.  If I feel that my work as been infringed, I’m going to pick the specific copyright I hold that best makes my case.  The infringer doesn’t get to pick which copyright I enforce, that is the choice of the copyright holder.

The amount and substantiality of the portion taken

The third test is the one that has the most myths and misunderstandings surrounding it, and that’s the amount of the work that is being infringed.  The first myth that must be dispelled is that it’s all about the amount.  It isn’t.  There is that pesky little substantiality bit that’s important too.  An easy example of substantiality that would apply would be to assume that you’re writing a novel and your first line is “Call me Ishmael” would probably get you in trouble with Meville.  Of course, Moby Dick is in the public domain now, so that’s irrelevant, but if it was still under copyright even that small bit of infringement would most likely not be fair use since that line is so associated and immortalized as being Moby Dick.

So it’s not just about the amount, but is the amount important, or the “heart”, of the original.  That’s not to say the amount of infringement isn’t important too.  The adage here is “less is more,” as in the less you infringe the more likely it is Fair Use.  The exception is parody.  In the aforementioned Campbell V Acuff-Rose the supreme court ruled that parody can substantially infringe and still be fair use.

Outside of parody, the size matters and smaller is better.  In fact, there is a legal concept known as “The De Minimis Defense” that basically says “I used such a small amount of the original that there is no need to put it to the Fair Use Test.”  Just like there is no bright line that defines Fair Use, there is no bright line that defines “De Minimis.”  It is decided on a case by case basis.

The effect of the use upon the potential market

This is another area of great confusion under the Fair Use defense.  Some incorrectly assume that if their market is different from the original works market, then they pass this test.  Nothing could be further from the truth.  This was decided in Rogers V. Koons.  In that case, Koons made a sculpture copy of a photograph taken by Rogers.  Among his Fair Use defense claims, Koons argues that the market for a sculpture is not the same as a market for a photograph.  The court denied this claim.  And it makes perfect sense.

Once a work is created and a copyright is in force, the original creator has the right to control the appropriated work of the original.  Let’s take a real world example here.  No one believes that because the markets are different, someone can take The Hunger Games, which is a book marketed to teens, and turn it into a movie marketed toward adults and not have it be infringement.  The creator of The Hunger Games has the right to control when and where and how it is reproduced.

This is the hardest test to overcome.  Even if you don’t make money or never intend to make money, you can fail this test.  Because it’s not just about your market, it’s about the other market as well.  That’s not to say that if your infringement hurts the market of the original, you may well fail this part of the test, but still win with the Fair Use defense.  After all, a review of a book may be negative, and that would clearly be detrimental to the original market.  But assuming it passed the other three portions of the test, you will most likely win a Fair Use defense.

Summary

Fair Use is a defense for infringement.  But it is a dangerous territory.  Tread lightly.  Infringe sparingly.  Be transformative.  And remember, you don’t get to use something and claim Fair Use.  You just use something, and if someone cries infringement… Fair Use is your defense.

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